Yesterday, the federal Court for the Eastern District of California issued a ruling granting in part the motions for preliminary injunction filed against the Trump Administration by the State of California in The California Natural Resources Agency v. Ross and a coalition of fishing and conservation groups (including NRDC) in PCFFA v. Ross. Today’s ruling gives a brief—but vital—reprieve to salmon and other imperiled native fish in the Bay-Delta, and it’s an encouraging sign that Plaintiffs will eventually succeed in overturning these biological opinions.
Our coalition sought a preliminary injunction to prevent implementation of these unlawful biological opinions this year, and instead to require the Trump Administration to continue to implement the prior (2008/2009) biological opinions until the Court issues a final judgment in the case. Preliminary injunctions are extraordinary relief, and difficult to win. But already this year, implementing the Trump Administration’s biological opinions has resulted in more pumping in the Delta, causing more harmful reverse flows in Old and Middle River, and killing thousands of salmon, more than a thousand longfin smelt, and even a Delta Smelt. Implementing the Trump Administration’s biological opinions has also resulted in less water flowing in the Stanislaus River, harming steelhead. It also has resulted in Reclamation preparing a deeply flawed plan for managing Shasta Dam this year that is predicted to kill more than a quarter of the population of endangered winter-run Chinook salmon; Reclamation has refused to model or analyze any alternative operations at Shasta Dam that would better protect salmon, prioritizing water diversions for Westlands instead.
The science is clear, as Interior Secretary Sally Jewell concluded in 2016, that the requirements in the 2008 and 2009 biological opinions must be strengthened to protect and restore these species. But instead of strengthening protections for salmon and other endangered species in the Bay-Delta, the Trump Administration (with the personal involvement of Interior Secretary David Bernhardt, who previously represented the Westlands Water District) weakened key protections in order to increase water diversions for Westlands and other contractors. So we filed this motion, recognizing that preventing implementation of these biological opinions this year may be our last, best chance to prevent the extinction of Delta Smelt, and to arrest the decline of winter-run Chinook salmon and other native fish species that are heading that way.
We are confident that these biological opinions are unlawful, which is one of the key legal tests for the Court in deciding whether to grant our motion. These biological opinions are a plan for extinction in the Bay-Delta and fail to comply with the Endangered Species Act. The State of California has also alleged that the biological opinions are fatally defective, do not use the best available science, and fail to provide a reasoned explanation between the facts found and the conclusions drawn. Numerous scientists have also raised red flags about the biological opinions—including some scientists at the federal agencies themselves. Today’s ruling by the court is an encouraging sign that we will eventually succeed in overturning these biological opinions, although the ruling is preliminary and does not guarantee success later in this litigation.
Yesterday’s ruling will require reduced pumping by the CVP in the remainder of May, requiring Reclamation to comply with the limits in the 2009 NMFS biological opinion (which this year appears to be the same as the pumping limit on the State Water Project under its incidental take permit). The Court also found that our request to require higher instream flows in the Stanislaus River was moot because the Trump Administration testified that it would be meeting the flow requirements in the 2009 NMFS biological opinion, and the Court will issue a subsequent ruling on the remaining issues in our motion for preliminary injunction (like management of water temperatures below Shasta Dam this year to protect salmon).
The last time David Bernhardt was at the Interior Department, NRDC and our allies won our lawsuit to overturn the Bush Administration’s biological opinions for the Bay Delta. But that victory came after years of litigation, during which the implementation of those biological opinions continued to hammer the species. I remain confident that we will ultimately prevail in this litigation and overturn these unlawful biological opinions, and while yesterday’s ruling is encouraging, let’s hope it doesn’t come too late to prevent the Trump Administration from driving our native fish and wildlife in the Bay-Delta extinct.